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A Threat to Due Process—The War Crimes Act 1991
Published online by Cambridge University Press: 28 February 2024
Extract
In Act One of ‘A Man for all Seasons’, Robert Bolt’s play about Thomas More’s pilgrimage to martyrdom, More’s impetuous son-in-law, William Roper, argues that the Devil does not deserve benefit of law. In the course of the discussion More pushes Roper into the stark claim that obstacle to the conviction of the Devil must be overcome, even if it meant failing to follow due process of law. Roper, in his hunger and thirst for justice, declares that he is prepared to tear down every law in England in so worthy a cause. More, with his finely-tuned jurisprudential mind, answers him:
And when the last law was down and the Devil turned on you—where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast—Man’s laws, not God’s—and if you cut them down—and you’re just the man to do it, d’you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake’. (Robert Bolt, A Man for All Seasons, 1960, Act I)
In this passage from Bolt’s play More focusses some of the issues raised by the recent War Crimes Act, which obtained the Royal Assent on 9 May 1991.’ The Act’s long title states that its purpose is ‘to confer jurisdiction on United Kingdom courts in respect of certain grave violations of the laws and customs of war in German-held territory during the Second World War.’
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- Copyright © 1991 Provincial Council of the English Province of the Order of Preachers
References
1 Chapter 13 of 1991.
2 See articles 22 of both the International Convention with respect to the Laws and Conduct of War by Land (Hague Convention II). (The Hague, 29 July 1899; T.S. 11 (1901); Cmnd 800) and the International Convention with respect to the Laws and Conduct of War by Land (Hague Convention IV) (The Hague, 18 October 1907; T.S. 9(1910); Cmnd 5030.
3 See the Charter of the International Military Tribunal, annexed to the Agreement for the Prosecution of the Major War Criminals of the European Axis (London 8 August 1945; T.S. 27 (1946); Cmnd 6903).
4 (1947) 41 A.J.I.L. 172 at 221.
5 War Crimes, Cmnd 744, 1989.
6 The idea that a change in the law is forced on the Government, essentially for the sake of the United Kingdom's international reputation, may be contrasted with the approach taken in Sweden which in 1987 refused to make any changes in its laws which provided for a twenty five years st???? of limitations for crime so as to permit the prosecution of alleged Nazi war criminals living in its territory.
7 See, for example, Article 1 Section 9 to the United States Constitution which provides, inter alia that:
‘No bill of attainder or ex post facto law shall be passed (by Congress).’
While Article 19 of the German Basic law provides:
‘(2) Insofar as a basic right may, under this Basic Law, be restricted by or pursuant to a law, such a law must apply generally and not solely to an individual case.’
8 Fuller, Lon: The Morality of Law, revised edition (1969; New Haven; Yale University Press)Google Scholar.